Kirsch v. Kirsch — 45 N.Y. St. Rep. 287

Majority

p. 287

Annie Kirsch, Resp’t, v. Hyman Kirsch, App’lt.

(New York Common, Pleas, General Term,

Filed April 4, 1892.)

Headnote

1. Divorce—Separation—Order for alimony and counsel fee.

In an action for a separation on the ground of neglect and refusal of a husband to provide for his wife, an order for alimony and counsel fee is one to be made in the action, and not by a separate special proceeding to be necessarily instituted by petition.

3. Same—When motion for alimony denied.

In such case, where it is shown that the husband took and furnished rooms, and invited his wife to live with him there, which she refused to do, and it is not shown that it was unsafe or improper for her to live with him, Held, that an order allowing her counsel fee and alimony was improperly granted.

Appeal from an order, in an action for a separation on the ■ground of neglect and refusal of a husband to provide for his wife, requiring defendant to pay $7.50 per week alimony and seventy-five dollars counsel fee pendente lite.

Alex. S. Rosenthal (Charles H. Smith, of counsel), for app’lt; John ¿7. Brodsky, for resp’t.

The first objection made to the order is that it was granted upon a motion based upon an affidavit and order to show •cause, and not upon petition; that the order is therefore irregular; and that the judge had no power to make the order to show cause before the proceeding had been instituted by petition. Wo authority is cited for these propositions and it does not appear that the objection was taken upon the motion. Irregularity would be waived by failure to make objection in time. But the proceeding was not' irregular. Before the incorporation of the practice in divorce cases in the Code of Civil Procedure it was held that the applications for alimony and counsel fee must be instituted by petition (5 Wait’s Pr., f86) and since the Code of Civil Procedure that practice has continued, but there seems no good reason for holding that application cannot be made upon motion instituted by order to show cause like any other application in the action. The order for alimony and counsel fee is an order made in the action, and not a separate special proceeding to be necessarily instituted by petition.

But on the merits of the motion I think the defendant should have prevailed. The complaint alleges neglect and refusal to

p. 288

provide for his wife and abandonment. It is not contradicted that he took and furnished three rooms for her at 97 Orchard street in May, 1891, and invited her to live with him there which she refused to do. No reason is given by her for snch refusal. It is.

• not shown that it is unsafe or improper for her to live with him. It would seem that she prefers to reside with her son by a former marriage, who keeps a shop in Willett street. She left her former residence with defendant in Delaneey street to go and live with that son and while there the defendant contributed to her expenses, but he was summoned before the police justice at the Essex Market police court, on May 7, 1891, for non-support It was then decided by the justice that he should provide a home for her and pursuant to that order he hired the apartments in Orchard street, to which she has refused to go.

As to the alleged abandonment, the complaint gives the date as. June 13, 1890. No particulars of this act are stated in her affidavit ; on the contrary, it appears from the affidavit of their son that his parents lived together at Willett street for some period before June 11, 1891, at which date the plaintiff caused the defendant to be ejected from the house, which was done by the stepson. There is no denial of this fact.

The papers do not show a refusal to support the plaintiff nor abandonment by the defendant at the time of the commencement of this action.

Order reversed and motion denied, without costs.

Bischoff and Pbyob, JJ., concur.